In other Obamacare litigation news, a federal district court in Wisconsin dismissed Republican Senator Ron Johnson’s lawsuit challenging regulations issued by the Office of Personnel Management concerning congressional health care plans. According to the court, Senator Johnson lacks Article III standing to challenge the rule because he has not suffered a concrete injury from the OPM rule.

As I noted here, Senator Johnson filed suit alleging that the OPM rule, which allows the federal government to continue subsidizing health insurance for members of Congress and some legislative staff, contravenes provisions in the PPACA that were intended to ensure that federal legislators and their staff obtain insurance through exchanges. I think Senator Johnson has a colorable claim on the merits, but standing is a real problem. The mere fact that the OPM rule may be unlawful (a question on which reasonable minds may differ) is not enough to make the case justiciable in federal court. The district court concluded Senator Johnson could not clear that hurdle, and thus dismissed the case. I expect an appeal will be forthcoming.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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